The Constitution of the New Germany

Course: Germany in the Twentieth Century

In May 23 1949, the Parliamentary Council of the newly founded Federal Republic of Germany proclaimed the new constitution. Naturally, with the memory of a dictatorial regime still vividly in the mind of every German soul, one of the main focuses of the 1949 constitution must be to avoid the revival of a Nazi-type government ― something that the 1919 Weimar constitution no doubt omitted.

            When comparing the two constitutions, one can easily notice that the focus of the new constitution is to preserve political stability and to avoid concentration of power. This is achieved often at the expense of the electoral right of the population, the political power of both the President and the government, as well as the efficiency of the appointment procedure. Overall, with the new constitution, it becomes considerably more difficult, if not impossible, to create a dictatorial government.

            To begin with, the German population loses a sizeable amount of political rights. This may seems rather bizarre. Given the complete lack of political participation during the rule of the Nazis, one may naturally be inclined to expect that the new constitution will grant more political power in the hands of the general public, thus making Germany more democratic.

            This isn’t the case at all. When comparing the political power of the population under the two constitutions, the public has in fact lost much of their power. For instance, the 1919 constitution grants the German population both the right to vote for their President (Hucko, 159) and to remove the President before the expiration of the term. (Hucko, 159) Under the 1949 constitution, however, the Federal President shall be elected by the Federal Convention that consists of the members of the Bundestag and representatives of the diets of Länder. (Hucko, 214) Also, only the Bundestag can remove the President from power, as mentioned in Article 61. (Hucko 216) In short, much of the power concerning the Presidential election is now transferred from the hands of the general public to the Bundestag.

            The last sentence of the previous paragraph will for sure give rise to criticisms, claiming that the deputies of Bundestag are only the representatives of the population, thus the power of the German in fact didn’t decrease. This claim is correct if and only if the decision of the Bundestag completely reflects the will of the population. The law concerning the election of the Bundestag suggests that this isn’t the case. The Federal Electoral Law makes it clear that “in distributing the seats among the Land lists, only such parties shall be taken into consideration as have obtained at least five per cent of the valid second votes cast in the electoral area or have won a seat in at least three constituencies.” (IUSCOMP article 6.6) In other words, under this new rule that is clearly disadvantageous to smaller parties, only parties of considerable size will ever have a chance to win seats in the Bundestag. Given that in peaceful time extremist parties are relatively small, this rule threatens the very existence, let alone growth, of these radical players. Thus, the Bundestag is biased, with voices from extremists virtually non-existence.

            And now this “biased” Bundestag that does not reflect the will of every German is voting for the Federal President on behalf of the population. As a matter of certainty, the Bundestag will not elect radical candidates like Adolf Hitler as President, simply because the radical party that support him are eliminated since the very beginning.

            What is perhaps more interesting, however, is the underlying connotation of these new rules of game. One can make a safe speculation that their raison-d’être is the mistrust of the popular view in times of national turmoil. The substantial support that Hitler and his party received in the early thirties is a sobering message to the new German leaders that population can at times make decisions with consequences that they themselves cannot foresee. Therefore, the writers of the 1949 constitution decide that from now on Germany will play “safe”. They decide that the voting right in Presidential election shall be stripped from the population, and shall be transferred to the potentially more rational and conservative deputies in the Bundestag.

            Not only is the power of the general public reduced, the power of the President is reduced as well. In the Weimar constitution, the President is extremely influential. According to article 47, the President of the Reich has supreme command over all the armed forces of the Reich. (Hucko, 160) In article 43, the seven years term of the Reich President can be renewed for an infinite number of times. (Hucko, 159) In article 44, it is implied that the Reich President can hold any other office except a seat in Reichstag. (Hucko, 159) In article 25, the Reich President may dissolve the Reichstag once for any reason. (Hucko, 155) And most importantly in article 48, the President can exercise absolute power in emergency by suspending several articles in the constitution concerning personal liberty. (Hucko, 160)

            Most of these rights of the President disappeared along with the proclamation of the new constitution. For example, according to article 65a, the power of command of the armed forces now lies in the hands of the Federal Minister of Defence. (Hucko 218) The term of office is also reduced to five years, with re-election permitted only once. (Hucko, 214) Moreover, under article 55, the Federal President now cannot be a member of the government or of a legislative body, nor engage in any other occupation. This is no doubt a lesson from 1934 when Hitler merged the Office of President with the Office of Chancellor, and thus greatly expanded his power. (Hucko, 214) Furthermore, the Federal President can only dissolve the Bundestag under some very peculiar situation described in article 63 and 68, which will be further explained in the following section. (Hucko 218-9) Last but not least, nothing like the article 48 in the Weimar constitution can be found in the new version of the constitution. In short, with the introduction of the 1949 constitution, power is less concentrated in the hands of the Federal President.

            The reduction of President’s power concerning the appointment and the dismissal of the Chancellor and the cabinet is a more complicated issue and deserves a closer look. Under the old constitution, the Reich President leads the entire process of creating the government. In article 53, it is mentioned that “the President of the Reich appoints and dismisses the Chancellor of the Reich and, on the latter’s recommendation, the Ministers of the Reich.” (Hucko, 161) The only role of the Reichstag is to force a member of the government to resign by withdrawing its confidence on him or her. (Hucko, 161) Thus, the Reichstag is only passively involved in the creation of the government.

            Meanwhile, under the 1949 constitution, the initiative lies in the hands of the Bundestag. In article 63, it is explicitly mentioned that “the Federal Chancellor shall be elected, without debate, by the Bundestag upon the proposal of the President.” (Hucko, 217) This is an important modification. The position of the President and the Bundestag (Reichstag) concerning the appointment of the Chancellor has practically shifted. Literally speaking, the article doesn’t give the Bundestag the right to choose the candidate in the election ― only the President has such right. However, in reality it cannot be the case that the Federal President will present a candidate to the Bundestag without prior consultation with the major parties. (Just imagine if the Bundestag keeps refusing to elect the President’s candidates for a couple of times, then where is the authority of the President?)

            To further complicate the process, article 63 also stipulates that if the person proposed by the President is not elected, the Bundestag can elect a Federal Chancellor themselves with more than one-half of its members and the President must appoint him. (Hucko, 217) Hence, under the new rule, it is ultimately the Bundestag who drives the entire appointment process.

            Another issue that the new constitution addresses is the provision concerning the dismissal of the government. Here one can notice without effort how a lesson is learnt from the Weimar Republic. The old constitution provides two ways to dismiss the government ― one is by the order of the President under article 53 (Hucko, 161), the other is by a vote of no confidence by the Reichstag under article 54 (Hucko, 161). At first glance, nothing seems to be missing in these two articles. However, during the later half of the Weimar Republic, it is very often the case that the Reich has no formal Chancellor due to dismissal and personal resignation. This has rendered the political situation in Germany a chaos and indirectly gave chance to radical parties to take advantage of it.

            Accordingly, the 1949 constitution obligates in article 67 that “the Bundestag can express its lack of confidence in the Federal Chancellor only by electing a successor with the majority of its members and by requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with the request and appoint the person elected.” (Hucko, 218) When reading this article with the political chaos of the Weimar Republic in mind, this provision is clearly aimed at preserving political stability by avoiding a vacuum of power.

            Two other provisions are engineered to secure a smooth transition of power and to avoid an empty government. The first one is about the election of the Federal Chancellor and is found in article 63. Under this clause, if the candidate proposed by the President is not elected, and that the candidate proposed by the Bundestag doesn’t obtain a majority in the Bundestag, then the Federal President must appoint this second candidate or must dissolve the Bundestag. (Hucko, 217) The purpose of this article is to close the loophole of the 1919 constitution that does not forbid a situation of power vacuum to happen. With this new provision, however, the President is obliged to move quickly to prevent a vacuum from taking place.

            The other way that the constitution helped to prevent a stalemate among the President, the Chancellor and the Bundestag is inserted in article 68. This article gives the President the right to dissolve the Bundestag if a motion of the Chancellor for a vote of confidence is not assented to by the majority in the Bundestag, as long as the Bundestag cannot come up with a new elected Chancellor. (Hucko, 218) Evidently, this article is meant to end any opposition between the government and the Bundestag as quickly as possible by expelling one of them from the game.

            In summary, the 1949 constitution can be seen as a revised version of the Weimar Republic’s. It is carefully written in order to avoid any concentration of power or a stalemate between the government and the Bundestag. This is done by limiting the political right of the general public, by limiting the power of the Federal President, by expanding Bundestag’s power concerning the appointment of the government, and by adding articles to end any stalemates between the government and the Bundestag as quick as possible.

References:

IUSCOMP. http://www.iuscomp.org/gla/statutes/BWG.htm.

Hucko, Elmar M. The Democratic Tradition. New York: BERG, 1987.